The Constitutionalist

In 1984, The National Review paid gloomy tribute to Supreme Court Justice William Brennan. “No individual in this country, on or off the Court, has had a more profound and sustained impact upon public policy in the United States for the past 27 years,” it said. From the perspective of The National Review, that influence, made all the stronger by what it described as “his engaging personality,” had been unfailingly pernicious: “A Catholic, he has played an instrumental role in the unfettered availability of abortion across the country; . . . appointed to the Court by a Republican because of his ostensibly conservative views and because of his experience as a state court judge, it is he who mandated the reapportionment of every state legislative system in the country; . . . the son of hard-working Irish immigrant parents, he nevertheless has made significant strides in elevating the welfare state to constitutional status.”

This was hardly the first indictment of Justice Brennan as a powerful judicial activist. Years before, Brennan had even been disowned by the President who appointed him. Fred Friendly, the former head of CBS News, asked Dwight Eisenhower in 1961 if he had made any substantial mistakes during his Presidency. “Yes, two,” Eisenhower said. “And they are both sitting on the Supreme Court.” The Justices he had in mind were Earl Warren and William Brennan. Neither had turned out to be as restrained in his approach to the Constitution as Eisenhower had expected.

Brennan has not lacked celebrators. They agree with his critics that his influence on millions of Americans who know nothing about him has been wide-ranging and profound. In a 1987 article in The National Law Journal, Norman Dorsen, the president of the American Civil Liberties Union, observed, “We would be living under a very different Constitution if Justice Brennan were not on the Supreme Court.” Brennan’s many landmark opinions, Dorsen wrote, have greatly strengthened freedom of expression and the rights of criminal defendants, and have expanded and deepened the principle of the Fourteenth Amendment’s “equal protection of the laws,” especially for racial minorities and for women. Brennan has often been on the dissenting side—increasingly so in the Rehnquist Court—but on certain fundamental questions of individual liberty he has so profoundly redefined the framework in which the issues are discussed that he may well be the most influential member of the Court in this century. Burt Neuborne, a law professor at New York University, believes him to be the most influential Justice of the Supreme Court since John Marshall. “Brennan knew how to blend his political instincts with a pervasive legal theory that transcended his personal views,” Neuborne says. “And he recognized the complexity of that task. That’s why he has been so much more influential than, for example, Hugo Black or William O. Douglas. While Douglas was alive, he was so vibrant a figure that his vividness tended to overshadow the staying power of his work. But when he retired he left behind no legacy that transcended his death. By contrast, Brennan’s influence is so great because he worked out a theory of the Constitution that will endure beyond the work of Douglas, Black, and many other Justices.”

Brennan sees the fundamental purpose of the Constitution to be—as he told Bill Moyers in a 1987 public-television interview—“the protection of the dignity of the human being and the recognition that every individual has fundamental rights which government cannot deny him.” It is because of this view of the Constitution that Brennan always enters a dissent against the imposition of the death penalty. He believes that it treats “members of the human race as nonhumans”—that “even the vilest criminal remains a human being possessed of common human dignity.”

Brennan also believes in “the age-old dream,” as he puts it, that eventually no one anywhere will be denied his or her inherent dignity and rights. “The dream, though always old, is never old, like the Poor Old Woman in Yeats’ play ‘Cathleen Ni Hoolihan,’ ” Brennan told me in his chambers at the Court one afternoon. “ ‘Did you see an old woman going down the path?’ asks Bridget. ‘I did not,’ replies Patrick, who came into the house just after the old woman left it, ‘but I saw a young girl and she had the walk of a queen.’ ” He smiled. “That passage has always meant a great deal to me. I’ve used it often over the last thirty years.”

William Joseph Brennan, Jr., was born in Newark, New Jersey, in 1906. His father, William Joseph Brennan, had come to New Jersey from County Roscommon, Ireland, in 1893. His mother, Agnes McDermott, was also an immigrant from Roscommon; she met her husband soon after moving, at age seventeen, to New Jersey to live with an aunt who ran a boarding house. “My father settled in Trenton, where he stoked the boiler in a factory, but he later found work as a coal heaver in the Ballantine Brewery in Newark,” Justice Brennan told me. “In those days, they had those monster furnaces that were served by hand and shovel. In short order, my father became quite dissatisfied with the way things were going at Ballantine’s. But before he could do anything about it he had to find a place to live, and he came upon the boarding house where Agnes McDermott was staying. They met, and they married. Back at work, my father felt that Ballantine’s was treating the coal heavers and the other employees unfairly. Remember, those were the days before we had the Wagner Act or the Taft-Hartley Act, or any of the other laws that protected workingmen in their efforts to organize. My father got into a great deal of trouble, but he went on to become quite prominent in what there was of a labor movement in Newark.”

By 1916, the elder Brennan had become a member of the Essex County Trades and Labor Council. “There was a transit workers’ strike—trolley-car conductors and motormen,” his son said. “They were up against a company owned by a family that you might say had a monopoly on the whole state. It was like a company state. One brother headed the biggest bank, another was in charge of the gas and electric companies, and the third had been attorney general. When the transit workers struck, the Newark police were on the side of the employers. My father came up with the idea ‘My God, the only way we’re going to be able to do anything about this is for labor to take over the city government.’ He sponsored a movement that resulted in the abolition of the mayor-and-aldermen form of city government and replaced it with five commissioners, each of whom was assigned to supervise a department. In the 1917 election, my father ran as a labor candidate, with the prospect that if he won he’d be named the Director of Public Safety. That way, he’d have control of the Police and Fire Departments, so there’d be no more strikebreaking.” Justice Brennan was clearly savoring the story. He smiled, and went on, “My father finished third out of eighty-six candidates, and was named Director of Public Safety. He headed not only the Police and Fire Departments but also the health-and-safety Licensing Department.” The senior Brennan was reëlected in 1921, 1925, and 1929. The last two times he ran, he finished first.

“There were eight of us,” Brennan told me. “Four boys and four girls. One of the boys later became general counsel of Ballantine’s. Raising a family that size on the kind of salary public officials got in those days was not easy. And my father was an honest man until the day he died. If there had ever been an honest official in the city of Newark, it was he. What got me interested in people’s rights and liberties was the kind of family and the kind of neighborhood I was brought up in. I saw all kinds of suffering—people had to struggle. I saw the suffering of my mother, even though we were never without. We always had something to eat, we always had something to wear. But others in the neighborhood had a harder time.”

Brennan went to parochial grammar school and to public high school. He was a good student, and was also industrious outside school. Daniel Crystal, a New Jersey attorney and a chronicler of Brennan’s life, says that the young Brennan made change for passengers waiting for trolley cars, delivered milk in a horse-drawn wagon, and worked in a filling station. After high school, Brennan attended the Wharton School of the University of Pennsylvania. He graduated cum laude in 1928 with a degree in economics, and that same year he married Marjorie Leonard, of East Orange. He entered Harvard Law School in the fall. Since the newlyweds required an income, young Mrs. Brennan stayed in New Jersey, working as a proofreader and secretary on a newspaper. In 1930, Brennan’s father died, leaving little money to his children. Brennan successfully applied for a scholarship in order to finish law school, and waited on tables in a fraternity house. He received his LL.B. in 1931, graduating in the top ten per cent of his class. One of his professors at Harvard Law School was Felix Frankfurter, who frequently urged his students, “Think for yourself.” Later, when both were serving on the Supreme Court, they often differed, and Brennan remembers, with a chuckle, that Frankfurter would sometimes say, “I always wanted my students to think for themselves, but Brennan goes too far.”

While Brennan was at Harvard, he was at odds with his father over a recent court case, Public Welfare Pictures v. Brennan. The Brennan was William Brennan, Sr., Public Safety Director of Newark, and at issue was an educational film called “The Naked Truth.” “It was one of those films intended to teach children about sex, and a movie outfit called Public Welfare wanted to show it,” Justice Brennan told me. “ ‘No, sir,’ my father said. ‘Not that filthy thing!’ He threatened to revoke the theatre’s license if the film was shown. Public Welfare went into the court of chancery and got an injunction against my father. He was compelled to let that film open. And that became a case that we studied in class.” On a visit home, young Brennan told his father that he believed that the court had ruled properly. “My father roared, ‘WHAAAAAAAAT!’ ” Brennan told me, laughing. “I was never able to convince him that it was a good opinion. He was just as independent as a hog on ice. He had similar clashes with producers of plays and burlesque shows. He lost more of them than he won. He was an old-fashioned Irish Catholic who took a very dim view of the propriety of anything that touched on the sexual.”

At Harvard, Brennan was president of the student legal-aid society, and his work there foreshadowed one of his chief concerns on the Supreme Court: making due process of law attend every defendant, including those defendants with the least resources. But after graduating from law school Brennan did not go into legal-aid work. Instead, he joined the large and distinguished Newark law firm of Pitney, Hardin & Skinner, sometimes known as “Pluck ’em, Hook ’em & Skin ’em,” where he became an expert in labor law—that is, the management side of labor law.

One of his opponents in court was Morton Stavis, a labor lawyer and later a founder of the Center for Constitutional Rights. In the Passaic County Bar Association’s journal, Stavis has recalled two of his encounters with Brennan when he himself represented the employees’ union of the Phelps Dodge Corporation, of Elizabeth, New Jersey, and Brennan represented its management: “He was a vigorous, overwhelmingly able, and above all gracious opponent. I was inexperienced in litigation at the time and was guilty of a number of procedural oversights. Not only did he not take advantage of them but he went out of his way to help me correct the record so that the cases would be fairly tried on the merits. Result: he won one case, I won the other.”

In 1942, Brennan took a leave from Pitney, Hardin & Skinner to join the Army, and was given the rank of major in its Ordnance Department. He was borrowed by the Army Air Forces to settle some severe labor problems in the aircraft industry on the West Coast, and after a year of negotiating he brought peace to the dispute. He went on to become a manpower troubleshooter in other areas of conflict, and by the time he left the service, in 1945, he had been promoted to colonel and had been awarded the Legion of Merit. He had shown such proficiency at managing men and affairs that one of his wartime colleagues later said, “I would have expected that he would have become the president of one of our great corporations.”

Instead, Brennan went back to his law firm and resumed his practice. The firm was renamed Pitney, Hardin, Ward & Brennan, but in 1949 Brennan resigned to accept an appointment from Governor Alfred Driscoll to the Superior Court of New Jersey. The appointment meant a considerable cut in income, and the reason Brennan decided to take it was that his large and growing law practice seemed to be affecting his health and didn’t leave him enough time for his family. He soon became an assignment judge in charge of the administration of justice in a number of courts, and after less than two years he was promoted to the Appellate Division of the Superior Court. There he became involved in devising ways to relieve the congestion in the New Jersey courts. His proposals impressed the Chief Justice of the state’s Supreme Court, Arthur Vanderbilt, and in 1952, at Justice Vanderbilt’s suggestion, Governor Driscoll appointed Brennan to that court. Brennan intensified his efforts to get cases to trial faster, working out a pretrial-conference system that shortened trials or, in many cases, made trials unnecessary by facilitating settlements. “Delayed justice is bad justice,” he once told Life magazine, “for time has a way of blurring memories and killing witnesses.”

While Brennan was on the New Jersey bench, he became known in legal circles for a particularly forceful dissent in State of New Jersey v. John Henry Tune. The defendant had been charged with murder, and the prosecution had a statement by him—made without a lawyer present—in which he confessed to the killing. Tune told his court-appointed lawyers that the statement had been exacted through force and through threats of violence to members of his family. His lawyers asked to see a copy of the confession before trial, but a majority of the New Jersey Supreme Court denied the request, on the ground that Tune might use the “opportunity to procure false testimony and commit perjury.” Brennan’s dissent emphasized the constitutional rights of defendants: “We must remember that society’s interest is equally that the innocent shall not suffer, and not alone that the guilty shall not escape. . . . It shocks my sense of justice that . . . counsel for an accused facing a possible death sentence should be denied inspection of his confession which, were this a civil case, could not be denied.”

Brennan might well have remained on the New Jersey Supreme Court for the rest of his career if Arthur Vanderbilt hadn’t got sick shortly before he was to be the keynote speaker at a conference in Washington, D.C., on court congestion. “It was in May, 1956,” Brennan recalls, “and the Attorney General of the United States, Herbert Brownell, had convened a large assembly of judges, scholars, and others interested in improving the administration of justice through better court procedures everywhere in the country. For some years, the No. 1 figure in that movement had been Arthur Vanderbilt. He became ill two days before the meeting, and I was pushed in to substitute for him. Having had so little time to prepare a speech, I spoke mostly off the cuff, for close to an hour.”

Brownell was impressed by Brennan’s performance, and four months later, when Supreme Court Justice Sherman Minton announced that he would retire in October, Brownell recommended Brennan as his successor, and President Eisenhower agreed. At the time, Brennan’s qualifications were generally considered to include not only his ability but also the likelihood that in the forthcoming election the President might pick up some votes by nominating a Democrat who was also a Roman Catholic; furthermore, the bright, well-respected Catholic from New Jersey might take some of the play away from the rising Senator John F. Kennedy. When I asked Brennan about this, he laughed, and said, “Well, I must say that didn’t dawn on me. I read all about it days afterward. John Kennedy had almost taken the Vice-Presidential nomination from Senator Kefauver. And Arthur Kock, of the New York Times—he was such a big wheel then—was conjecturing that even though the prospect of Adlai Stevenson’s defeating the President was not that likely, Herbert Brownell, smart politician that he was, was not going to take any chances, and wanted to fend off Stevenson by putting a Northeast Irishman on the Court. Well, I did read a lot about it, but nobody ever said a word to me about it.”

One of the opponents of Brennan’s nomination was Senator Joseph McCarthy. “He knew about me,” Brennan said, chuckling. “In 1954, when I was on the New Jersey Supreme Court, I was asked to address the Charitable Irish Society of Boston on St. Patrick’s Day, and I spoke of certain things going on that were reminiscent of the Salem witch-hunts.” In 1955, Brennan spoke before the Monmouth Rotary Club, in New Jersey, on the subject of the Fifth Amendment, and said, “Frankness with ourselves must compel the acknowledgment that our resentment toward those who invoked its protection led us into a toleration of some of the very abuses which brought the privilege into being so many centuries ago. The abuses took on a modern dress, it is true—not the rack and the screw but the distorted version of the happenings at secret hearings released to the press, the shouted epithet at the hapless and helpless witness. . . . That path brings us perilously close to destroying liberty in liberty’s name.”

“Hell, when I made those speeches I had no idea I would ever get to sit on the Supreme Court,” Brennan told me. “And those weren’t the only times I paid my respects to Senator McCarthy. I made speeches calling him all sorts of names before other groups around Monmouth County. So when Eisenhower announced he was going to appoint me, McCarthy issued a statement saying that I was supremely unfit for the Supreme Court. And, though he wasn’t on the Judiciary Committee, he asked to sit with that committee, so that he could interrogate me. I had a recess appointment, so they didn’t get around to my hearings until I’d been on the Court for some four months. At first, there was resistance to McCarthy’s sitting in on the committee. He was in decline. He had already been censured, and he died not long after my hearings. I thought that those who were against his sitting with the committee were wrong. There’s absolutely nothing in the Constitution which limits the advice-and-consent function of the Senate. Nothing. And, because each senator has to cast his own vote on the matter, he should be able to interrogate the nominee if he wants to. And any senator, furthermore, is entitled to ask any damn question he wants—about ideology or whatever the hell it may be.”

I asked Justice Brennan what kinds of questions Senator McCarthy had asked.

“Oh, just the craziest things.” Brennan’s voice took on McCarthy’s heavy cadences, including the ominous pauses: “ ‘Do you mean to tell me you don’t think the most important thing we can possibly do is rout out Communists, wherever they are?’ ”

During the hearings, McCarthy announced gravely to the committee that he had brought a document concerning the nominee. It turned out to be Brennan’s St. Patrick’s Day speech in Boston. “Do you approve of congressional investigations and exposures of Communism?” the Senator asked Brennan. “Show me one little word in any speech in which you ever approved of congressional investigations.”

Brennan replied that he thought such investigations were a “vital function” of the Congress, but that since he was already on the Supreme Court his oath of office forbade him to make any comment on matters that might come before him. “I gather that those who heard the exchanges between us all that day did not think it was one of Senator McCarthy’s finest hours,” Brennan remarked to me.

Having been evaluated by the American Bar Association as “eminently qualified” at the time he was appointed to the Court, Brennan now received the approval of the Senate Judiciary Committee. On March 19, 1957, the United States Senate confirmed his nomination. The sole negative vote was cast by Joseph McCarthy. The new Justice told one reporter that he considered himself “the mule entered in the Kentucky Derby,” and added, “I don’t expect to distinguish myself, but I do expect to benefit from the association.”

In a 1987 interview on National Public Radio, Brennan recalled his introduction to the other members of the Court this way: “Chief Justice Warren invited me to his chambers, and from there we went up to the third floor of the Supreme Court Building. In a small room, my seven new colleagues were sitting around a table having sandwiches. The room was dark, and he put on the light, and there they all were, watching the opening game of the 1956 World Series. I was introduced by the Chief to each of them, and someone said, ‘Put out the light.’ They put out the light, and they went on watching the game.”

In a 1986 article on Brennan in the American Bar Association Journal, Joel Gora, a professor at Brooklyn Law School, noted that in 1956, when Brennan came on the Court, it “had no clear direction or identity,” and he went on:

The school desegregation decisions had not yet been implemented, and concepts like affirmative action had not even been articulated. First Amendment doctrine was mostly a function of ad hoc decision-making as the Court grappled with the issues posed by Communist Party advocacy and association. The rights of the accused, too, were determined by case-by-case adjudication, and the major reforms that would protect defendants against the excesses of local law enforcement were years away.

Notions of using the Constitution to protect private choice on intimate matters such as contraception, abortion and sexual privacy or preference would have seemed visionary. Problems raised by grossly malapportioned state legislatures were viewed as political questions not subject to constitutional measure. Indeed, constitutional restraints seemed largely irrelevant to the conduct of government at the state and local levels.

Through a blend of pragmatism and principle, with an ebullient, gregarious and easy personal manner, Justice Brennan helped change all that.

In the beginning, however, Brennan found it hard to feel comfortable on the Court. In a 1973 article in the University of Chicago Law Review, he wrote, “I expect that only a Justice of the Court can know how inseparably intertwined are all the Court’s functions, and how arduous and long is the process of developing the sensitivity to constitutional adjudication that marks the role. One enters a new and wholly unfamiliar world when he enters the Supreme Court of the United States, and this is as true of a Justice who comes from a federal court of appeals as it is of a Justice, like me, who came from a state supreme court. I say categorically that no prior experience, including prior judicial experience, prepares one for the work of the Supreme Court.”

When I read that statement to Justice Brennan recently, he laughed. “Did I say that? It’s right, you know, every damn word of it. What I was talking about reflects, I expect, more of my own background as a state judge. Nonetheless, what I said is the sort of thing Felix Frankfurter also used to say. For example, when I was on the Jersey courts, the judges, at whatever level, had no occasion to keep abreast of the Supreme Court in that dimension of criminal law that has to do with the Bill of Rights. Those rights and liberties were not made applicable to the states until I got here. For instance, the exclusionary rule—that illegally obtained evidence cannot be used in a court, because it violates the Fourth Amendment—was not extended to the states until 1961. But even today’s state judges who come here have difficulty adjusting to the Court at first. Take my colleague Justice O’Connor. She was an Arizona state judge at the trial court and the intermediate appellate court. Many of the cases she dealt with did have to turn on the application of the Bill of Rights—as we had decided here—to state law. But I know that even she will tell you that you simply don’t feel comfortable in this seat until you’ve been here for a while. One of the reasons is that it’s a pretty awesome feeling, believe me, to appreciate that something you’re doing, when it’s decided, will have an enormous impact among two hundred-odd million people. And that feeling never leaves you. It just never leaves you.” Brennan smiled. “It takes a while before you can become even calm about approaching a job like this. Which is not to say you do not make mistakes. In my case, there has been the obscenity area.”

He looked at the red-bound volumes of his opinions, and said, “For sixteen years, it fell to me to write most of the obscenity opinions here. They were usually assigned to me. I won’t say why, but they were.”

“Why were they assigned to you?” Brennan chuckled. “Because nobody else wanted to have anything to do with them.”

Measuring obscenity against the First Amendment has been a challenge to Brennan since the days when he came home and argued with his father about censorship. Yet Brennan was not entirely at odds with his father: he believed that some forms of expression were indeed beyond the protection of the First Amendment. That notion became Supreme Court doctrine in Roth v. United States, for which Brennan wrote the majority opinion during his first year on the Court. A companion case, Alberts v. California, was decided the same day. Brennan’s opinion, covering both cases, established him as the Court’s spokesman on a complex, emotional issue that was then—as it is now—intently followed by religious groups, civil libertarians, politicians, complaining constituents, book publishers, writers, and movie producers.

Samuel Roth had been convicted of mailing obscene advertisements and circulars as well as an obscene book. David Alberts had been convicted of “keeping for sale” obscene and indecent books and publishing an obscene advertisement for them. In his decision Brennan emphasized that “sex and obscenity are not synonymous,” and he tried to make as narrow as possible that area of speech which could be penalized. “The door barring federal and state intrusion into [freedoms of speech and the press] cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests,” he wrote. His solution was to adopt what struck him as a fair and reasonable test. Expression would not be protected under the First Amendment if “to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”

Brennan believed he had set a reasonable course by which the Court could draw a line between obscenity and speech that the Constitution intended to be free, yet what Justice John Harlan later described as “the intractable obscenity problem” only got worse. Ten years after Roth, Harlan observed, “The subject of obscenity has produced a variety of views among the members of the Court unmatched in any other course of constitutional adjudication.” By then, the Court had decided thirteen obscenity cases, and there had been fifty-five separate opinions.

In a 1966 case, “Memoirs” v. Massachusetts, Justices Brennan, Warren, and Fortas had used as a test of obscenity that the material in question be “utterly without redeeming social value.” Justices Douglas, Black, and Stewart had concurred. In 1973, in Miller v. California, the Burger majority discarded the “utterly without redeeming social value” criterion, and, in effect, largely removed the burden of proof from the prosecutor. It was up to the defense to convince a judge or a jury that the indicted material had “serious literary, artistic, political, or scientific value.”

The Miller decision came down on the same day as Paris Adult Theatre I v. Slaton. In a long dissent in that case Brennan took fundamental issue with the Burger majority, and, in a rather rare confession by a Supreme Court Justice, admitted that his long effort to figure out the difference between protected speech and obscenity had been a failure:

I am convinced that the approach initiated 16 years ago in Roth v. United States . . . and culminating in the Court’s decision today, cannot bring stability to this area of the law without jeopardizing fundamental First Amendment values, and I have concluded that the time has come to make a significant departure from that approach. . . . The essence of our problem in the obscenity area is that we have been unable to provide “sensitive tools” to separate obscenity from other sexually oriented but constitutionally protected speech, so that efforts to suppress the former do not spill over into the suppression of the latter. . . . It comes as no surprise that judicial attempts to follow our lead conscientiously have often ended in hopeless confusion.

At that point, Brennan seemed to throw up his hands:

I am reluctantly forced to the conclusion that none of the available formulas, including the one announced today, can reduce the vagueness to a tolerable level while at the same time striking an acceptable balance between the protections of the First and Fourteenth Amendments, on the one hand, and on the other the asserted state interest in regulating the dissemination of certain sexually oriented materials. Any effort to draw a constitutionally acceptable boundary on state power must resort to such indefinite concepts as “prurient interest,” “patent offensiveness,” “serious literary value,” and the like. The meaning of these concepts necessarily varies with the experience, outlook, and even idiosyncrasies of the person defining them. . . . I would hold, therefore, that at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly “obscene” contents.

“I put sixteen years into that damn obscenity thing,” Justice Brennan told me early one morning in his chambers. “I tried and I tried, and I waffled back and forth, and I finally gave up. If you can’t define it, you can’t prosecute people for it. And that’s why, in the Paris Adult Theatre decision, I finally abandoned the whole effort. I reached the conclusion that every criminal-obscenity statute—and most obscenity laws are criminal—was necessarily unconstitutional, because it was impossible, from the statute, to define obscenity. Accordingly, anybody charged with violating the statute would not have known that his conduct was a violation of the law. He wouldn’t know whether the material was obscene until the court told him.”

Brennan has had greater success in broadening the definition of the First Amendment. One of his landmark decisions in that area was New York Times Co. v. Sullivan. In 1960, L. B. Sullivan, the police commissioner of Montgomery, Alabama, had sued the Times for publishing an advertisement signed by writers, actors, labor leaders, and black Southern preachers. The text of the ad accused Southern authorities of conducting a “wave of terror” against black students demonstrating for their civil rights, and also charged the police with trying to intimidate Dr. Martin Luther King, Jr. Although Commissioner Sullivan’s name was not mentioned in the ad, he claimed that he would be considered responsible for many of the actions listed there. A jury awarded him five hundred thousand dollars in damages.

Until New York Times Co. v. Sullivan, libel was left to the common law of each state, on the ground that it was a private matter. Reversing the verdict, Justice Brennan established—for the first time in United States history—that “the constitutional protections for speech and press limit a state’s power to award damages in a libel action brought by a public official against critics of his official conduct.” Brennan quoted the principal author of the First Amendment, James Madison: “The censorial power is in the people over the Government, and not in the Government over the people.” And, in a passage that is widely quoted, Brennan stated, “We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Adding to the historic significance of the decision, Brennan addressed the Alien and Sedition Acts of 1798, which had criminally penalized speech defaming the government. In the hundred and sixty-six years since the passage of those statutes, the Supreme Court had not explicitly declared them unconstitutional. Brennan finally did.

New York Times Co. v. Sullivan did not foreclose all libel suits brought by public officials, but, by insisting that such suits meet the “actual malice” test, the decision made them more difficult to win. Brennan wrote that a public official (and this was later broadened to include public figures in general) cannot recover “damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Another important First Amendment decision was Brennan’s 1967 opinion on the right of New York State to impose loyalty tests on teachers in public schools, including public colleges and universities. The case, Keyishian v. Board of Regents of New York, involved a teacher named Harry Keyishian, an instructor in English at the State University of New York at Buffalo, who had been threatened with the loss of his job, and indeed was not rehired the following year when he refused to comply with various “loyalty” provisions enforced by the New York State Board of Regents. Fifteen years before, the Supreme Court, by a six-to-three majority, had affirmed the constitutionality of the same set of loyalty tests in New York State. In his majority opinion Justice Minton, Brennan’s predecessor, saw nothing injurious to the First Amendment in a statute that said that no one could be employed in the public-school system who spoke “any treasonable or seditious word or words.” There was also a law requiring the state’s Board of Regents to compile a list of “subversive” organizations, membership in which would be “prima facie evidence of disqualification.” The definition of “subversive” included the “advocacy” of the overthrow of government by violent or any other unlawful means, and it also included the utterance of seditious words.

Brennan, in his opinion, wrote that the language in the anti-subversive statutes and regulations was unconstitutionally vague. Under the penal law involved, for instance, one commits the felony of advocating criminal anarchy if one “publicly displays any book . . . containing or advocating, advising or teaching the doctrine that organized government should be overthrown by force, violence or any unlawful means.” Brennan asked, “Does the teacher who carries a copy of the Communist Manifesto on a public street thereby advocate criminal anarchy?”

The Civil Service law also penalized the teaching of subversive doctrines. Brennan asked, “Does the teacher who informs his class about the precepts of Marxism or the Declaration of Independence violate this prohibition?. . . And does the prohibition of the distribution of matter ‘containing’ the doctrine [that government should be overthrown] bar histories of the evolution of Marxist doctrine or tracing the background of the French, American, or Russian Revolutions?” With all the vagueness of the interlocking statutory and regulatory language, Brennan said, “it would be a bold teacher who would not stay as far as possible from utterances or acts which might jeopardize his living by enmeshing him in this intricate machinery.”

Brennan went on to focus on the particular reason for safeguarding First Amendment freedoms in this case: “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

Concerning the New York State law that membership in the Communist Party was prima-facie evidence that a teacher was not qualified to remain in the educational system, Brennan emphasized that “mere knowing membership without a specific intent to further the unlawful aims of an organization is not a constitutionally adequate basis for exclusion from such positions as those held by appellants.”

Twenty years later, Harry Keyishian was interviewed as part of the Bill Moyers series “In Search of the Constitution,” on public television. Keyishian told Moyers that as an undergraduate at Queens College, in New York, he had seen a number of his professors fired for failing a loyalty test, and he said, “What struck me at the time, what I still carried as a kind of burden into the nineteen-sixties, was a sense of frustration and impotence, to watch these very decent, these intellectually talented and dedicated teachers vanishing from the system . . . and not being able to do anything about it.”

The day the Supreme Court decision came down, Keyishian was awakened by a friend who worked at the Times. He told Keyishian the news. It was a five-to-four decision, however, and Keyishian told Moyers he had worried that the next time the issue came before the Court the decision might not stand; after all, though the so-called McCarthy era had ended, the vote had been very close. As the years passed, and Brennan’s opinion remained the law of the land, Keyishian realized that Brennan’s “decisions have apparently been so well drawn and so well crafted that they’ve held up in very hostile environments in that Court, and I hope they’ll continue to do so.”

I saw Justice Brennan at the Supreme Court soon after he watched Harry Keyishian on the Moyers television program, and he was excited at having seen the actual person behind the name on the Court papers. “It was fascinating,” he told me. “It was the first time I had seen him. Of course, it’s rare that I ever see the people in the cases we deal with. The things he said on the program, the fight he and the other teachers put up—I had no idea how much they had to lose personally if the case had gone the other way. They would have lost everything they had ever done as teachers.”

I asked Justice Brennan one afternoon whether the occasionally sharp exchanges in the published opinions of the Court were reflected in the Justices’ personal encounters in the Court’s conference room, the chambers, and the corridors.

“It’s hard to believe this, but none of that carries over—in the slightest—to our personal relationships,” Brennan said. “It’s remarkable, it really is, but it’s absolutely essential in a small body of nine people who have to work as closely as we do, and out of sight of the public or the press or anyone else. You simply can’t afford to let your convictions affect your personal relationships. I’m not saying it has never happened, but I can say this: I have sat now with about a fifth of all the Supreme Court Justices there have been, and I have never had a cross word with one of them. Not with a single one of them. On the other hand, there’s no question that Bill Douglas’s relationship with Felix Frankfurter was very much affected by their conflicting views. They were more than distant.” Justice Brennan smiled, and added, “They were almost snarling at one another. You’ll recall that when Felix came to the Court everybody expected that he was going to be the great liberal champion. Of course, he turned out to be anything but. But Bill, who came on the Court just after Felix, started out as the great financial expert, the chairman of the Securities and Exchange Commission. His first work on the Court consisted of a number of really brilliant opinions in that field, and then he became a real champion—with Hugo Black—of the Bill of Rights. Felix regarded him as a turncoat, much as Bill regarded Felix as a turncoat. Consequently, their relations were very strained, to put it mildly. Before that, there was Justice McReynolds, who would not shake hands with Louis Brandeis or Benjamin Cardozo, because they were Jews. So there has been animosity between the Justices in the past, but in my day—except for that between Felix and Bill—there has been none.”

Brennan almost never shows resentment at anything written or said about him, but he does bristle when he is complimented for being the preëminent “politician” on the Court. “I am not a playmaker,” he has told me a number of times. “I don’t go around cajoling and importuning my colleagues to go along with my point of view. When I have been able to draw a consensus, I have done it by the drafts I circulated among my colleagues. Rather than try to talk something out with another Justice, I sit down and write concrete suggestions as to what I don’t like about what he has done or what I do like about it. I suggest changes in their drafts, and other Justices will suggest changes in what I’ve written. Every Justice of this Court admits that holding on to a majority can be a very difficult thing, and what we all do is try to persuade each other by what we write to each other. From time to time, when I think I’m going to have a five-person majority, one of the four will write to me and say, ‘I’ll be happy to join with you if you delete this and this.’ If you can, you do it. But there are times when I have to write back and say, ‘I don’t think I should, because then it wouldn’t be what I wanted to say.’ It’s quite important to get these differences out by written exchanges.”

Jeffrey Leeds, who clerked for Justice Brennan from October, 1985, to October, 1986, and is now an investment banker, says, “It’s true that Justice Brennan doesn’t go around buttonholing the other Justices, trying to persuade them to join one of his opinions. He doesn’t have to do that. He gets us to do it; that is, he gets his clerks to talk to the other clerks and find out what their Justices are thinking.”

I told Brennan what his former clerk had said, and he laughed loud and long. “Well, it’s true,” he said. “That’s not the case with all my colleagues. Some of them hold tighter strings on their clerks’ activities than I do. In my case, I’ll take help wherever I can get it, and I think it’s very helpful to have clerks exchange points of view with clerks in other chambers. It’s helpful, when they know what I think about something, to attribute to me any view I may have. They’re free to talk about anything we have here, about my position and their position, and anything else. I’ve worked that way ever since I came here. It has always struck me as rather unfortunate that some Justices will not let their clerks do that sort of thing. They will tell their clerks on given cases not to say anything about how the Justice feels. I don’t understand it. After all, we employ the clerks to help us. They are surrogates in a greater sense than is true of most associations.”

A clerk beginning his tenure with Justice Brennan receives a series of short orientation speeches from his employer. One has to do with the Brennan chambers’ dress code. “I walked into his chambers for the first time, and Justice Brennan said he was pleased to meet me,” Leeds recalls. “Then he did this thing he does every year. He kind of grabs your necktie and says, ‘Do you like wearing these things?’ You say no. ‘Then take it off,’ he says. ‘You’ll spend plenty of time working hard in this building. You might as well be comfortable.’ ”

There is also the five-finger speech. It generally comes when a new clerk asks, in dismay and outrage, how a majority of the Court has arrived at a decision he or she feels is flagrantly unjust. Justice Brennan holds up his hand, wriggles his five fingers, and says, “Five votes. Five votes can do anything around here.”

All the more reason, before a final count in a case at hand, for his clerks to try to find out enough about the thinking going on in the other chambers. “While an opinion is being written in our chambers, we might talk to a clerk for a Justice who we knew would be a tough fifth vote,” Leeds explains. “And we would ask this clerk what was really bugging his guy about Brennan’s draft. This information-gathering can take place after oral argument in a case, when the Justices hold their conference. That’s where the preliminary votes are taken, before drafts of opinions are circulated. Or it can happen before a conference. We might find out, from his or her clerk, where a Justice is leaning on a particular case. When we know what that Justice is thinking, we keep that in mind when we write out two-page summaries of each case for Brennan to emphasize at the conference. The points he hits may be pitched entirely to that one Justice.”

Depending on the individual Justices, clerks have varying input in the shaping of the written opinions. A first draft is almost invariably written by a clerk. One of them describes the experience by saying, “You go back to your office, you take a deep breath, you stare at your computer screen, and you go, ‘Holy shit, I’m going to write the law of the land.’ ” Brennan requires that all his clerks—he has four—and not only the author of the first draft, sign off on the analysis of the case before he sees it. That way, he gets a range of viewpoints. After he reads the draft, he tells the clerk in private what he feels is lacking or is just plain wrong. Brennan reads every word in every change, and at times engages in what one clerk calls “dramatic rewriting.”

His clerks, Brennan told me, never write the final draft. “But all of us need to make use of the contributions of the clerks,” he said. “If we didn’t have the benefit of their writing and research, we couldn’t handle the workload here.” For his first fourteen years on the Court, Brennan had only two clerks, and so did each of the other Justices. The third clerk came in the 1970 term. “The reason is that John Harlan’s eyes failed him, and his clerks had to read to him,” Brennan explained. “We insisted that he had to have an additional clerk to help with the reading, and he was absolutely adamant that he would not take a third clerk unless the rest of us did. The reason we took the fourth clerk was Bill Douglas’s stroke, in early 1975. He wasn’t able to work, but he had already taken on new clerks, and we decided we didn’t want those boys to lose out, so we just parcelled them among us. It was done on a seniority basis, and I was one of three Justices to get an extra clerk. Once some of us started with four, we said, ‘Well, hell, everybody ought to have four.’ A couple of us have cut down, but then we go back up again.”

For his first dozen or so years on the Court, Brennan depended on Paul Freund, a professor at Harvard Law School, to send him the students he considered best qualified to be clerks. Brennan told me, “Then Paul came to me and said, ‘Look, every law school in the country is madder than hell at you for taking law clerks only from Harvard. You ought to branch out.’ So now I take them from everywhere. Hell, I’ve had them from night schools.”

Brennan is proud of his alumni. He keeps in touch with them, and they gather for a reunion every three years, bringing their husbands and wives. Among Brennan’s former clerks are federal circuit judges, a state-supreme-court judge, and law professors at Harvard, Yale, Columbia, New York University, and Boalt Hall, at the University of California at Berkeley. “Out of more than a hundred clerks I’ve only had one lemon,” he said. “Isn’t that amazing? Only one who couldn’t do the work. Every other one has measured up, and some of them brilliantly.”

There was one exceptionally brilliant law student who, though he had been offered a clerkship by Brennan in 1966, was never able to serve, and some of the Justice’s warmest admirers consider what happened to the student an uncharacteristic surrender by Brennan to political pressures. Michael Tigar, now a law professor at the University of Texas, was a law student at Boalt Hall, where he had participated in a demonstration against the House Un-American Activities Committee, and he had attended a youth festival in Helsinki, where some of the other participants were from the Soviet Union. Various right-wing individuals and organizations began to attack Tigar’s appointment, and, with talk of a congressional inquiry, Brennan withdrew the offer. Instead, Tigar went to work for the powerful Washington law firm headed by Edward Bennett Williams.

In the spring of 1988, when I asked Justice Brennan about Michael Tigar and the lost clerkship, he said, “That was a very sad occasion for both of us at the time. Mike and I have remained good friends. He’s a great guy, a wonderful lawyer. What actually happened was a deluge. The right wing deliberately set up a program—a system of pressure—that involved Abe Fortas, who was on the Court then; J. Edgar Hoover; and, more particularly, Hoover’s right-hand man, Clyde Tolson. They bombarded me with all kinds of letters—all having to do with Mike’s participation in the Helsinki youth meeting. Probably, if I had just continued to face it down, the investigation would never have happened. But they had twenty-eight or more congressmen protesting Mike’s appointment. Clyde Tolson came over to see Fortas, and Fortas came in to see me to tell me that if I went through with this there might well be an inquiry, which would be most embarrassing to Tigar and to me—and to the Court.”

I said that I was surprised at Fortas’s role, in view of his strong record in support of the First Amendment.

Brennan laughed. “He was very supportive of the First Amendment, but he was also very close to Lyndon Johnson, and also to J. Edgar Hoover,” he said. “They used Fortas for a lot of things.”

“At what point did you begin to seriously reconsider your appointment of Tigar?” I asked.

“When it got to the point where they were going to talk about a congressional inquiry,” Brennan said. “Remember, a little before this happened, the Senate came very close to passing the Jenner Bill, which would have stripped the Court of jurisdiction over cases involving the powers of congressional investigations, loyalty rules for teachers and federal employees, state anti-subversion laws, and state regulations for admission to the bar.”

I asked Brennan if Chief Justice Warren had been involved in deciding what to do about Tigar’s clerkship.

“No. Aside from Fortas, the only one of my colleagues who said anything about it was Bill Douglas. He was furious. Oh, he was absolutely furious at me for capitulating. He said, ‘You’ve got to stand up to those people.’ ”

I asked Justice Brennan if he’d had second or third thoughts about whether he should have taken Douglas’s advice.

“I must say I’ve had a number of second thoughts,” he said. “I suppose I should have treated it as something that would go away, but I didn’t. I was very much concerned that—in the atmosphere of those days—if we got into this kind of thing it certainly would not have done the Court any good. That’s what I said in the discussion I had with Mike at the time. A clerkship simply could not have that much significance—if it was going to hurt the institution.”

“Did Tigar understand that?”

“Oh, Mike understood it perfectly.” Brennan paused. “That’s the only instance of anything like that I’ve had in all my years here.”

All that Professor Tigar will say is “I have enormous respect for Justice Brennan.”

In a 1977 Harvard Law Review article, Brennan wrote:

It was in the years from 1962 to 1969 that the face of the law changed. Those years witnessed the extension to the states of nine of the specifics of the Bill of Rights; decisions which have had a profound impact on American life, requiring the deep involvement of state courts in the application of federal law. The eighth amendment’s prohibition of cruel and unusual punishment was applied to state action in 1962. . . . The provision of the sixth amendment that in all prosecutions the accused shall have the assistance of counsel was applied in 1963, and in consequence, counsel must be provided in every courtroom of every state of this land to secure the rights of those accused of crime. In 1964, the fifth amendment privilege against compulsory self-incrimination was extended. And after decades of police coercion, by means ranging from torture to trickery, the privilege against self-incrimination became the basis of Miranda v. Arizona [1966], requiring police to give warnings to a suspect before custodial interrogation.

The year 1965 saw the extension of the sixth amendment right of an accused to be confronted by the witnesses against him; in 1967 three more guarantees of the sixth amendment—the right to a speedy and public trial, the right to a trial by an impartial jury, and the right to have compulsory process for obtaining witnesses—were extended. In 1969 the double jeopardy clause of the fifth amendment was applied. Moreover, the decisions barring state-required prayers in public schools, limiting the availability of state libel laws to public officials and public figures, and confirming that a right of association is implicitly protected, are significant restraints upon state action that resulted from the extension of the specifics of the first amendment.

One of Brennan’s more difficult inner debates during this expansive change in the face of the law concerned the religion clauses of the First Amendment. The first clause prohibits “an establishment of religion.” The second clause prevents the state from prohibiting the “free exercise” of religion. In a 1986 Times interview, Brennan was asked by Jeffrey Leeds, his former clerk, to describe the hardest decision he had had to make as a Justice. “The school-prayer cases,” he said. “The 1963 Schempp opinion”—a concurring opinion by Brennan—“is some eighty pages long. The position I finally took took a long time to come around to. In the face of my whole lifelong experience as a Roman Catholic, to say that prayer was not an appropriate thing in public schools, that gave me quite a hard time. I struggled.”

School District of Abington Township, Pennsylvania, v. Schempp addressed laws of the State of Pennsylvania requiring that “at least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day” and providing that “any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian.” The Supreme Court declared the laws unconstitutional, and Brennan ended his concurring opinion by going back to an 1856 speech on religious liberty by Jeremiah S. Black, a former Chief Justice of the Commonwealth of Pennsylvania. Brennan paid his respects to Justice Black’s remarkably lucid analysis by quoting from it:

The manifest object of the men who framed the institutions of this country, was to have a State without religion, and a Church without politics—that is to say, they meant that one should never be used as an engine for any purpose of the other, and that no man’s rights in one should be tested by his opinions about the other. As the Church takes no note of men’s political differences, so the State looks with equal eye on all the modes of religious faith. . . . Our fathers seem to have been perfectly sincere in their belief that the members of the Church would be more patriotic, and the citizens of the State more religious, by keeping their respective functions entirely separate.

Since the 1963 decision, Brennan has often emphasized in conversation that separation of church and state does not mean that the Constitution encourages hostility to religion. Nor, he points out, is he himself hostile to religion. Indeed, Brennan—a devout Catholic—still believes what he said in a speech he made before coming on the Court: “Whatever their religious belief, all Americans acknowledge with us the fitness in recognizing in important human affairs the superintending care and control of the great governor of the universe and of acknowledging with thanksgiving His boundless favors.”

Brennan sees no contradiction between that belief and his votes against state-sponsored crèches and against permitting public-school teachers—paid by federal funds—to go into parochial schools to provide remedial instruction. To Brennan, most of these cases have a bright line of First Amendment law running through them. Every American, he says, is guaranteed a free choice of his or her own religion or the choice not to believe at all. And the other religion clause in the First Amendment, the establishment clause, prohibits the government from, as Brennan puts it, “sticking its nose into how individuals should make that choice.”

The extraordinary strengthening of the Bill of Rights—from the religion clauses to the rights of criminal defendants—during the Warren Court and, to some extent, thereafter grew out of the very belated acknowledgment by the Supreme Court that the Fourteenth Amendment meant what it said. “The citizens of all our states,” as Brennan puts it, “are also and no less citizens of our United States.” Accordingly, “this birthright guarantees our federal constitutional liberties against encroachment by government action at any level of our federal system, and . . . each of us is entitled to due process of law and the equal protection of the laws from our state governments no less than from our national one.”

Brennan talks and writes about the Fourteenth Amendment with undimmed enthusiasm. In the 1987 interview with Bill Moyers, he said that because of the amendment there was “really a brand-new Constitution after the Civil War.” But Brennan’s celebration of the Fourteenth Amendment is tempered by apprehension that the Supreme Court will increasingly weaken that “egalitarian revolution.”

Another concern of Brennan’s is safeguarding the constitutional rights of young people. No other Justice in the history of the Court has been more intensely involved in this area than Brennan. In one significant case in 1981, the Supreme Court denied a petition for a writ of certiorari from a fifteen-year-old girl. Such refusals to review a decision by the lower courts are common, of course. Uncommon, however, was Justice Brennan’s public rebuking of his colleagues in a printed dissent. It takes four members of the Court to grant certiorari, and Brennan could not understand why he was the only Justice to feel strongly that the Constitution had been violated in this case. When cert is denied, the names of Justices who wanted to review the case are often listed, but only very rarely does one of them say why. And even rarer are dissents as long as Brennan’s in Diane Doe v. Renfrow. “I was really mad,” Brennan told me recently.

In 1979, Diane Doe, aged thirteen (her last name was not given, because she was a minor), was sitting in her classroom at Highland Junior High School, in Highland, Indiana. Next to that building was a senior high school. Suddenly, all the classrooms in both schools were entered by school and police officials—along with police-trained German shepherds—who were undertaking a mass search for drugs and drug paraphernalia. No students in particular were under suspicion; all of them were under general suspicion. For two and a half hours, the students had to sit quietly with their hands upon their desks and the contents of their desks in plain view. Reporters from newspapers and broadcast stations were present. Each student was inspected by a German shepherd. Justice Brennan wrote that when one of the dogs came to Diane it “sniffed at her body, and repeatedly pushed its nose and muzzle into her legs.” By its concentrated attention, the dog had marked the girl as a person under suspicion. No drugs were found in her pockets, and she was taken to the nurse’s office, where she was strip-searched. Again, no drugs were found. The German shepherd, it turned out, had smelled not marijuana but traces of a dog Diane had been playing with before she left for school.

Diane Doe sued several school district officials and the police chief, among others, claiming that her Fourth Amendment rights had been abused. No judge had issued a warrant for the dragnet operation, although the Fourth Amendment requires one for searches and seizures. It also requires, her lawyers argued, that the searchers have probable cause to believe that illegal behavior is taking place or has taken place on the premises, and that the persons to be searched are involved in this activity. (Although the lesser standard of “reasonable suspicion” can be used in searches of students by school officials, once police are brought in—as in this case—the “probable cause” standard applies, Brennan said in his dissent, to public-school students.) The Fourth Amendment also says that the place or the person to be searched must be “particularly”—that is, individually—described.

In their court papers Diane’s lawyers wrote, “Being a teen-aged schoolgirl is neither a crime nor a cause for suspicion.” The lawyers also charged that school officials, however well-intentioned they may have been, had converted public schools “into police checkpoints.” A federal district judge threw out Diane Doe’s case. The mass detention and inspection were constitutionally valid, he said, and, while the strip search was so intrusive as to violate the Fourth Amendment, he refused to award damages against the school authorities, because they had been acting in good faith and trying to keep the school safe. As for the German shepherds, the judge ruled that being sniffed by a dog is not a search as defined by the Fourth Amendment. The dogs’ only function had been to compensate for the inferior olfactory sense of the school officials and the police. The judge thereby dismissed a point made by the student’s lawyers: “If we are to understand the dogs’ muzzles as mere extensions of the nostrils of the principal, then Highland’s school administrators have been sticking their noses into some singular places. The dogs ran their noses along pupils’ legs, between their shoes, and even into their crotches and buttocks, actually touching the bodies of the students. Surely it can be vouchsafed that no respectable school administrator would do the same.”

Diane Doe appealed to the Seventh Circuit Court of Appeals, and it agreed with the lower court except for denying immunity to the school officials connected with the strip search. Justice Brennan approvingly quoted what the Seventh Circuit said about the strip search: “It does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human decency. Apart from any constitutional readings and rulings, simple common sense would indicate that the conduct of the school officials in permitting such a nude search was not only unlawful but outrageous under ‘settled indisputable principles of law.’ . . . We suggest as strongly as possible that the conduct herein described exceeded the ‘bounds of reason’ by two and a half country miles.”

In his dissent from the Supreme Court’s denial of further review to the young woman, Brennan said that in his opinion the use of the dogs did indeed constitute a search. He recalled that Diane Doe had testified that “the experience of being sniffed and prodded by trained police dogs in the presence of the police and representatives of the press was degrading and embarrassing,” and he wrote, “I am astonished that the court did not find that the school’s use of the dogs constituted an invasion of the petitioner’s reasonable expectation of privacy.” Of the searches of all the students, Brennan said, “At the time of the raid, school authorities possessed no particularized information as to drugs or contraband, suppliers or users. Furthermore, they had made no effort to focus the search on particular individuals who might have been engaged in drug activity at school.”

The last paragraph of Brennan’s dissent was directed as much at his colleagues as at school authorities across the nation: “We do not know what class petitioner was attending when the police and dogs burst in, but the lesson the school authorities taught her that day will undoubtedly make a greater impression than the one her teacher had hoped to convey. . . . Schools cannot expect their students to learn the lessons of good citizenship when the school authorities themselves disregard the fundamental principles underpinning our constitutional freedoms.”

For Brennan, as for one of his predecessors, Justice Louis Brandeis, the expectation of privacy—the freedom from fear of arbitrary government invasion of that privacy—is at the core of the Fourth Amendment. In conversation, Brennan will sometimes recite the amendment, stressing each word: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” He repeats the phrase “probable cause,” and says, “It’s a high standard the Framers wanted. And it means that no search may be conducted unless the official knows of facts and circumstances that warrant a prudent man to believe that an offense has been committed.”

In the National Public Radio interview with Brennan in 1987, Nina Totenberg, whom Brennan particularly respects among those who report on the Court, played the devil’s advocate, asking him, “Why do you let some of these creeps go? They do such bad things, and on some technicality you let them go.”

“Honestly,” Brennan said, raising his voice, “you in the media ought to be ashamed of yourselves to call the provisions and the guarantees of the Bill of Rights ‘technicalities.’ They’re not. They’re very basic to our very existence as the kind of society we are. We are what we are because we have those guarantees, and this Court exists to see that those guarantees are faithfully enforced. They are not technicalities! And no matter how awful may be the one who is the beneficiary time and time again, guarantees have to be sustained, even though the immediate result is to help out some very unpleasant person. They’re there to protect all of us.”

The essence of Brennan’s fear that the Fourth Amendment is fading away can be found in a little-noted dissent to the Court’s denial of review of a 1985 case, McCommon v. Mississippi. Brennan began by stating that “this Court has long insisted that the determination whether probable cause exists to support a search warrant be made by a ‘ neutral and detached magistrate.’ ” In McCommon v. Mississippi, he said, the judge who issued the search warrant “indisputably ‘rubber stamped’ the police request.” The petitioner’s car had been searched pursuant to a warrant, and a sizable quantity of marijuana had been found in the trunk. Before trial, the owner of the car moved to have the evidence suppressed under the exclusionary rule, on the ground that there had not been probable cause for the issuance of the warrant. Brennan had carefully read the testimony from the pretrial hearing in Mississippi, and he quoted it in his dissent. The defense attorney asked the judge if he issued the warrant because officers of the law had asked for it rather than because of “any particular thing they told you.” “That’s right,” the judge said. “If Sheriff Jones walked in there and said, ‘Judge, I need a search warrant to search John Doe for marijuana,’ or drugs or whatever—liquor or whatever it might be—I’m going to go on his word, because he’s—I take him to be an honest law-enforcement officer and he needs help to get in to search these places and it’s my duty to help him fulfill that.”

Brennan then reminded his colleagues of what he had said in his dissent in United States v. Leon, the year before, the majority having ruled that an officer’s execution of a defective warrant does not violate the Fourth Amendment if the officer did not know that the warrant was defective. “I warned that creation of a good faith exception implicitly tells magistrates that they need not take much care in reviewing warrant applications, since their mistakes will have virtually no consequence,” Brennan wrote in his new dissent. “Today the Court tacitly informs magistrates that not only need they not worry about mistakes, they need no longer be neutral and detached in their review of supporting affidavits. The combined message of Leon and the Court’s refusal to grant certiorari in this case is that the police may rely on the magistrates and the magistrates may rely on the police. On whom may the citizens rely to protect their Fourth Amendment rights?”

In the years since, Brennan, in conversation, has continued to seem gloomy about the prospects of the exclusionary rule. Yet in January of this year, in a ruling so surprising that it made the front page of the Times, he succeeded in preventing a further expansion of the exclusionary rule—one that would have greatly weakened it. In James v. Illinois, the defendant in a murder case had made incriminating statements to the police when he was arrested. But the arrest had been made without a warrant and without probable cause, and, accordingly, those statements were not at first admitted at the trial. However, a friend of the defendant gave testimony at the trial which was directly contrary to what the defendant had told the police. The prosecution moved, successfully, to have the defendant’s original statement admitted in order to impeach his friend’s testimony, and this exception to the exclusionary rule was upheld by the Illinois Supreme Court. In reversing the Illinois Supreme Court, the Brennan majority included Justice Byron White, who, in the past, had voted for a number of restrictions of the exclusionary rule, and, indeed, was the author of the majority opinion in United States v. Leon, which had established the good-faith exception. I asked Brennan how he had persuaded White to join him, and he smiled. “It was hard,” he said. “Very hard.”

From the beginning of his time on the Court, Brennan has been a persistent guardian of civil-rights protections for blacks. What is surely the most dramatic opinion he has drafted for the Court, Cooper v. Aaron (1958), was also signed by every other member of the Court—Earl Warren, Hugo Black, Felix Frankfurter, William O. Douglas, Harold Burton, Tom Clark, John Harlan, and Charles Whittaker. Chief Justice Warren said later that he did not recall that ever happening before; usually, even when the Court is unanimous, the opinion is signed only by its principal author, and joined by the other Justices. The reason for this show of unity was that the Court’s unanimous 1954 decision, in Brown v. Board of Education, ruling that segregated public schooling is inherently unequal was being defied by Governor Orval Faubus, of Arkansas, and the Arkansas State Legislature. On September 2, 1957, Faubus had sent Arkansas National Guard units to block implementation of a plan by the Little Rock School Board to desegregate the public schools gradually, beginning with one high school. For three weeks, the soldiers, standing shoulder to shoulder, forcibly prevented nine black students from entering Central High School. On September 25th, the students finally got into the school, after federal troops were sent there by President Eisenhower. The following February, the school board decided it would be safer—in view of undiminished white hostility—if the integration plan was delayed, and the federal district court agreed to have the plan postponed for thirty months. In “Super Chief,” a judicial biography of the Warren Court, Professor Bernard Schwartz, of the New York University Law School, describes what happened next: “The Court of Appeals for the Eighth Circuit reversed [the district court], but stayed its order thirty days to permit the School Board [to appeal]. . . . The black students then filed a motion in the Supreme Court to stay the court of appeals postponement.” With the school term due to begin in September and the Supreme Court’s term due to start in October, the Chief Justice called a rare Special Term of the Court, which heard oral arguments in August and September.

The Court’s subsequent opinion, as it was constructed by Brennan, has been described by Professor Schwartz as “one of the classic statements of the rule of law under the Constitution.” It was read aloud at the Court by the Chief Justice on September 29, 1958: “The controlling legal principles are plain. The command of the Fourteenth Amendment is that no ‘State’ shall deny to any person within its jurisdiction the equal protection of the laws. . . . Article VI of the Constitution makes the Constitution the ‘supreme Law of the Land.’ In 1803, Chief Justice Marshall, speaking for a unanimous Court . . . declared in the notable case of Marbury v. Madison . . . that ‘It is emphatically the province and duty of the judicial department to say what the law is.’ . . . That principle has ever since been respected by this Court and the country as a permanent and indispensable feature of our constitutional system. . . . No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: ‘If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery.’ A Governor who asserts a power to nullify a federal court order is similarly restrained.”

As for the Brown decision itself, Brennan wrote:

State support of segregated schools through any arrangement . . . cannot be squared with the [Fourteenth] Amendment’s command that no State shall deny to any person within its jurisdiction the equal protection of the laws. The right of a student not to be segregated on racial grounds . . . is indeed so fundamental and pervasive that it is embraced in the concept of due process of law. . . . The principles announced in [the Brown] decision and the obedience of the States to them, according to the command of the Constitution, are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living truth.

The Times noted that the Court’s opinion in Cooper v. Aaron was written in “clear and simple language, understandable even to the most fanatic segregationist.”

Justice Brennan has also long regarded sex discrimination as violating the Fourteenth and Fifth Amendments, and he has been more insistent than any of his colleagues that such discrimination be given a high level of constitutional scrutiny. His reasons are vigorously expressed in a 1973 case, Sharron and Joseph Frontiero v. Elliot Richardson, Secretary of Defense. Joseph Frontiero, attending college full time, was receiving a veteran’s benefit of two hundred and five dollars a month. His wife, Sharron, was a lieutenant in the Air Force, and, claiming her husband as a dependent, she applied for an increased housing allowance and also for medical and dental benefits for her husband. Under federal law, male members of the uniformed services automatically received the increased housing allowance and the extra benefits for their wives, but a woman could qualify for the same extra housing and medical benefits only if she could prove that she was paying more than half her husband’s living expenses. Sharron Frontiero was paying three-sevenths of her husband’s living costs, and was denied the extra benefits.

Brennan’s opinion for the Court went farther than some of his colleagues would have liked. The majority of the Court agreed that Sharron Frontiero had been subject to unconstitutional discrimination, but there was no majority for Brennan’s view that discrimination by sex should be, like discrimination by race, examined by the Court with “strict judicial scrutiny.” This is the highest standard in the Supreme Court classification of cases, and it places a heavy burden on the federal government or a state to justify unequal treatment. Although Brennan did not secure strict scrutiny for sex discrimination, he has, as the years have passed, come closer to getting a majority of the Court to at least look more rigorously at the constitutional implications of sex-discrimination cases. In the Frontiero case, he noted:

There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of “romantic paternalism” which, in practical effect, put women, not on a pedestal, but in a cage. . . . Our statute books gradually became laden with gross, stereotyped distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. . . .

We can only conclude that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny.

In his opinions, Justice Brennan often interchanges personal pronouns. That is, the case may concern a male defendant or plaintiff, but Brennan will refer to the principal as “she” at times and “he” at others. “I do it purposely,” he told me. “I’ve been doing it for two or three years. Why? Well, why should we males be the only illustrious participants in whatever events we’ve been talking about?”

Of all the developments in constitutional law since he has been on the Court, Brennan regards as among the most significant the growing independence of the state courts. While a state cannot provide less protection of individual liberties than does the federal Constitution, any state can guarantee stronger protections for its citizens, and in January, 1987, for example, in an action warmly welcomed by Justice Brennan, Oregon’s Supreme Court ruled that its state constitution mandates—the Supreme Court of the United States notwithstanding—that “obscene” material can no longer be prohibited or censored in the state. Oregon’s Article I, Section 8, forbids the passage of any law restricting “the right to speak, write, or print freely on any subject whatever.” And, the State Supreme Court said, “obscene speech, writing or equivalent forms of communication are ‘speech.’ ”

I saw Brennan soon after that decision of the Oregon Supreme Court came down, and he started to reminisce about his role in the increasing independence of the state courts. He has been the primary force in getting more and more lawyers, legislators, and judges to think about the need for states to become aware of—and, if necessary, strengthen—their own constitutions.

“It all started around 1972,” he said. “I initially suggested the idea in a speech very late at night to, I’m afraid, a quite inebriated meeting of the New Jersey State Bar Association. I was really concerned at the time about the way that things were going here at the Court—particularly in the area of the Fourth Amendment, but also in other areas of individual rights and liberties.”

In 1977, Brennan wrote what proved to be a widely influential article, “State Constitutions and the Protection of Individual Rights,” in the Harvard Law Review. “State courts cannot rest when they have afforded their citizens the full protections of the federal Constitution,” he declared. “State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.” Without “the independent protective force of state law,” he said, “the full realization of our liberties cannot be guaranteed.”

In 1986, addressing the American Bar Association’s Section on Individual Rights and Responsibilities, in New York, Brennan was able to quote with satisfaction from a statement by Justice Hans Linde, of the Oregon Supreme Court: “A lawyer today representing someone who claims some constitutional protection and who does not argue that the state constitution provides that protection is skating on the edge of malpractice.” Brennan, however, is far from entirely satisfied with the direction of constitutional law, state and federal. In the same speech he said something I have heard him say in his chambers and have read in many of his Court opinions, and particularly in his dissents: “We do not yet have justice, equal and practical, for the poor, for the members of minority groups, for the criminally accused, for the displaced persons of the technological revolution, for alienated youth, for the urban masses, for the unrepresented consumer—for all, in short, who do not partake of the abundance of American life. . . . The goal of universal equality, freedom and prosperity is far from won and . . . ugly inequities continue to mar the face of our nation. We are surely nearer the beginning than the end of the struggle.”

Shortly before the 1988 Presidential election, I reminded Justice Brennan that a number of liberals and libertarians had expressed concern for the future of the Court. If George Bush was elected, they pointed out, he might have several seats to fill, among them the seat of Justice William Brennan.

“Look,” Brennan said. “This is an institution that has had its ups and downs for over two hundred years. By and large, it has done well, I think. There have been downturns from time to time. God help us, there was Chief Justice Taney and the Dred Scott decision. But we survived all that. So I don’t see anything that serious, by way of changing jurisprudence, in contrast with what has happened in the past. And that’s why I refuse to get sick about who might win. Anyway, whatever is to be, hell, we’re a democracy. The only way the citizens can have their views felt nationally is through the Congress and the Presidency. That’s our system.”

Also part of the system is access to justice, and of all the members of the Court in this century—and perhaps throughout its history—Brennan has been the most interested in making the courts accessible to as many people as possible. “I have always felt that the courthouse door has been closed to too many people on the ground that they don’t have sufficient reason for being heard,” he told me. “Take the execution of Gary Gilmore, in Utah, in 1977. Gilmore insisted he wanted to die. He didn’t want any more appeals. He had no patience for it. But his mother brought a case here trying to prevent the execution, and the Court refused to hear her on the ground that she had no standing to be heard. Good God, we can’t refuse to discharge our responsibility to decide whether he should die or not. Anybody ought to have a right to be heard in a case like that. I’ve taken that position in many other kinds of cases, besides the death penalty.”

Whenever I tried to engage Brennan in a broader discussion of his influence on the Court’s direction in the past thirty-three years, he demurred. He discourages such talk. Although he works, as he must, case by case, he is keenly aware of the slightest nuance in the changing dynamics of the Court, but it is not his habit to see himself as a figure in marble in its halls. He regards his job as one of trying to include as many people as possible within the protections of the Constitution and of determining how to get four other votes on the cases that will help do that.

Over the years, Justice Brennan has made an invaluable collection of private Supreme Court history. Each term, he documents the evolution of the Justices’ opinions in major cases: included in his files are notes of what went on during conferences, and so are draft opinions and memoranda circulated among the Justices. But, although historians have urged Brennan to make these histories available eventually, he is not sure what he will do with them. Just about every time I’ve talked to Brennan, I have asked him whether he has made up his mind about the fate of these histories, and so far he hasn’t. “It’s a very troublesome question for me as to what the hell to do with them,” he said recently. “I have a very clear memory of how angry Hugo Black and Bill Douglas were when Alpheus Mason used Chief Justice Harlan Fiske Stone’s private notes in a biography about him. They were memoranda of cases, histories of cases—the voting, the reactions of the members of the Court, and so forth. Just like my own. Black and Douglas were furious. They insisted that Stone’s histories were one-sided and didn’t tell the whole story. They said it was all a goddam lie. That’s why Hugo Black insisted he was going to burn every damn paper of his. He said, ‘I’m not going to have any colleague of mine in a position where he can say I’ve lied about what happened.’ His instructions weren’t carried out completely, but some of his papers were destroyed. What concerned Hugo Black bothers me, too. None of my colleagues have seen any of my memos. Nobody sees them except me. They cover the major cases from the time they’re received at the Court. A lot of people want me to preserve them. For about ten years, I sat on the National Historical Publications Commission, and all my colleagues were very distinguished and well-known historians, and they were absolutely horrified at the thought that I might not preserve these histories.”

“Me, too,” I said.

“Well, there you are. One of these days, I’m going to have to make up my mind about what I’m going to do.”

The conversation was interrupted by a telephone call, and while he talked I looked at the photographs of his children and his grandchildren lined up on a mantel behind his desk. After he hung up, he spoke with pride about his family. His elder son, William Joseph Brennan III, is a trial lawyer in Princeton, and is active in various bar-association committees. I asked the Justice whether, as I’d heard, William Brennan III is more conservative than his father.

Brennan laughed, and said, “Well, let me put it this way. In the coming election, we may be on different sides.”

Another son, Hugh Leonard Brennan, is in the Department of Commerce, where he directs the Office of Procurement and Administrative Services, and Nancy Brennan Widman is the director of Baltimore’s City Life Museums. “Hugh and Nancy are probably more like me,” Brennan said.

The children’s mother, Marjorie Leonard Brennan, died in December, 1982, after a long battle with cancer. In March of 1983, Justice Brennan wrote a memorandum to the conference—that is, to the eight other Justices—telling them that he had been married the day before to Mary Fowler, who had been his secretary for twenty-six years, and that they were on their honeymoon, in Bermuda. Brennan, whose health and spirits had declined during his first wife’s illness and after her death, was clearly rejuvenated by his second marriage.

Mrs. Brennan, I had heard, often disagrees with her husband’s opinions from the bench, feeling that the Justice is too liberal. I asked Brennan if that was so.

“Oh, she’s a dear, dear, darling wife and a darling lady, and she just has her own ideas and she voices them,” he said. “I love it. I love it.”

The Brennans do not go out much in the evening. The Justice rises at five in the morning, spends half an hour on his Exercycle, reads the papers, has breakfast, and by eight is in his chambers, where he reads Court papers. He usually stays at the Court until four-thirty, and he takes work home every night. “It’s hard work,” he said. “It takes up practically all your waking hours.”

“Have you ever thought of some other line of work you might have preferred?” I asked.

He laughed. “Not for me. Ever. I really mean it. There’s nothing I can think of that would have given me anything like the satisfaction I’ve had from this.”

He had another appointment in a few minutes. I rose. Brennan rose, too, and took me by the elbow as he escorted me out of his office and through the corridors of the Court. He seemed to know all the staff members, including the elevator operators and the guards, by name, and he stopped and talked to a few of them about their children and other matters of interest.

I asked if he thought at all of when he might retire.

“I’ll go when the good Lord tells me it’s time to go. But not before then. The satisfactions of this job have accelerated each year. It’s just incredible being here—I mean the opportunity to be a participant in decisions that have such enormous impact on our society.” Justice Brennan turned to go back to his chambers. “Incredible,” he said.

I spoke to Brennan again at the end of the 1988–89 Supreme Court term. There had been a series of civil-rights decisions, all opposed by Brennan, that, in the words of Barry Goldstein, until last July the director of the Washington office of the N.A.A.C.P. Legal Defense Fund, were “not just decisions limiting affirmative action but cases limiting the ability of women and men to prove discrimination, limiting the remedies once discrimination is proved, and limiting the opportunity to settle.”

A majority of the Court had also ruled it constitutional to execute murderers who are mentally retarded, and had decided that it is not “cruel and unusual punishment” under the Eighth Amendment to execute people who were sixteen or seventeen at the time they committed the crime. Moreover, the Court ruled that indigent prisoners on death row do not have a constitutional right to a lawyer to assist them in a second round of state-court appeals, even though such appeals often prove successful. I asked Brennan if he was still reasonably sanguine about the future of individual rights and liberties under the Court.

“Well, there is a pretty solid majority on the other side now, but it hasn’t been an unbreakable coalition,” he said. “I’m not discouraged to the point of giving up. I’ve selected my clerks for the next two years. I hope people don’t overdo the suggestion that we’re headed for perdition. This sort of thing has happened before, and the Court has finally righted itself.” His voice brightened. “After all, Kennedy and Scalia joined me on the flag-burning case, for God’s sake. And on a couple of others. As did O’Connor on some cases. I agree the emphasis of the Court is not in my direction, but I’m not going to walk out and say the hell with it.”

Next to the abortion decision—Webster v. Reproductive Health Services, which gave power to the states to broaden restrictions on abortions, and in which Brennan dissented—the term’s most controversial decision was Texas v. Johnson. Brennan, writing the opinion for a five-to-four majority, ruled that the First Amendment protects burning the American flag as an act of political protest. He wrote, “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive and disagreeable. . . . We decline, therefore, to create for the flag an exception to the joust of principles protected by the First Amendment.”

It was characteristic of Brennan to use the word “joust.” He sees his life’s work as a continual battle for five votes to help the words of the Constitution leap off the page, as he once put it, and into people’s lives.

“Look, pal,” Justice Brennan told me at the end of our conversation. “We’ve always known—the Framers knew—that liberty is a fragile thing. A very fragile thing.” He smiled, and went back to work. ♦

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